June 12, 2007

In the latest chapter of the AutoAdmit.com scandal, two female Yale Law School students have sued Anthony Ciolli, the Web site’s former “chief educational director,” and more than two dozen others who allegedly used pseudonyms and posted the students’ photos as well as defamatory and threatening remarks about them on the online law-school discussion forum....

The law students aren’t named in the suit — filed yesterday in U.S. District Court in Connecticut — which claims the defendants violated copyright infringement by posting photos of one of the women without her permission, falsely posing as the women in posts on the site, and engaging in “unreasonable publicity given to another’s life; publicity that places another in a false light before the public; intentional infliction of emotional distress; negligent infliction of emotional distress; and defamation.”

The complaint asks for judgment against the defendants for unspecified damages as well as punitive damages in the amount of $245,400. Besides Ciolli, named defendants include individuals with pseudonyms such as “Pauliewalnuts” and “The Ayatollah of Rock-n-Rollah.”

“It’s bringing the right to protect yourself against offensive words and images into the 21st century,” said David N. Rosen, a New Haven, Conn.-based attorney for the students and a senior research scholar in law at Yale Law to the Law Blog in an interview. “This is the scummiest kind of sexually offensive tripe,” he said of the postings about the women on AutoAdmit.

So this is the 21st century? Where courts award punitive damages for offensive words and pictures? Isn't "the scummiest kind of sexually offensive tripe" exactly what we always used to say people had to put up with in a free country? Man, that was so 20th century!

MORE: Glenn Reynolds: "Stuff that offends dumb hicks in the heartland is constitutionally protected. Stuff that offends Yale Law Students must be stamped out!" Yeah, really.

And in the comments Bruce Hayden raises a damned good question about the copyright claim (which is the whole basis for federal subject matter jurisdiction in the complaint (PDF)): "Copyright protects original expression. Thus, the photographer would be the copyright owner, not the subject of the photographs." I'm not a copyright expert, and I'm not writing this as anyone's lawyer -- I'm retired from the practice of law -- but it looks to me as though the copyright claim is completely frivolous, and all the other claims are state law claims. Subject matter jurisdiction is based only on federal question jurisdiction, not diversity of citizenship, so all those state law claims are in federal court because they are supplemental to the federal claim. Under § 1367(c), then, when the copyright claim is tossed out, the whole case should be dismissed. Unless our fearless lawyer refiles in state court, we'll never get to hash out all the interesting free speech issues. But then, this case should never have been filed. So, much as I'd like to see a strong precedent protecting offensive speech, it will be good to see this nipped in the bud.

AND: The complaint does assert that one of the plaintiffs owns the copyright in the photographs that are the basis of the copyright claims. It appears that the plaintiff acquired the copyrights in preparation for the lawsuit, and I'll leave it to copyright experts to say more about that, but the question I want to raise is: If the plaintiff(s) did not own the copyrights at the same time as the other incidents alleged in the complaint, how can the copyright infringement be part of the same constitutional case as all the state law tort claims under §1367(a)? That is, how can the federal court have jurisdiction over anything but the copyright claims?

ONE MORE THING: This post originated as a response to the lawyer's phrase "the scummiest kind of sexually offensive tripe." I want to see "the scummiest kind of sexually offensive tripe" protected. That doesn't mean I support defamation or the revelation of private facts or impersonating someone by name on a website. Those are different matters, and I don't mean to express an opinion as to whether any torts like that are alleged in the complaint. I just want to remind people to keep our free speech bearings. We have lost our way if we've forgotten the importance of protecting speech that is "scummy" and "offensive" and "tripe."

which claims the defendants violated copyright infringement by posting photos of one of the women without her permission

Huh? Copyright protects original expression. Thus, the photographer would be the copyright owner, not the subject of the photographs.

People sometimes do have a legal right in preventing being photographed, but it is really under privacy, and clearly not copyright. And even then, it is very much limited (otherwise, the National Enquirer, et al. would be out of business).

"Isn't 'the scummiest kind of sexually offensive tripe' exactly what we always used to say people had to put up with in a free country?"

Well, no, not always. Only since about 1968. Before that, people somehow managed to believe America was a free country without having to put up with public displays of "the scummiest kind of sexually offensive tripe." Those damned fools.

AJD: "'So this is the 21st century? Where courts award punitive damages for offensive words and pictures?' No. It's the 21st century, where, like in the 20th century, anybody can file anything they want."

What a jerk you are insulting me when you're entirely missing my sarcasm! I'm characterizing the idiocy of the plaintiffs' lawyer. Get a clue.

Could the photographs in question be the photographs reposted from Facebook? Then the original photographers would likely be the women or their friends.

It seems odd to claim copyright infringement on photographs that are publicly available, particularly since Facebook and similar sites allow users to restrict access quite easily. But maybe not as odd as claiming to own a photograph someone else took.

MORE: Glenn Reynolds: "Stuff that offends dumb hicks in the heartland is constitutionally protected. Stuff that offends Yale Law Students must be stamped out!"

Yeah, really.

No, not really.

This is considerably different than someone getting offended by a crucifix suspended in urine, isn't it?

These are pictures of individuals, with their names, baselessly and publicly attacked in front of their peers and coworkers.

Us good-old heartland folks wouldn't like that either. If you put up unremovable pictures of Maryjane SoAndSo with filthy and false captions in a public space in a small town, a legal dustup just might ensue (despite our humility and down-home common sense).

I don't really think the charges have merit either (sue the site director for its comments? pff..), but the red-state/blue-state rhetoric is lame.

I would accept many of the social standards of our time -- our smut and trash talk free speech standards included -- if only they would bring back a gentleman's right to duel.

Sure, some obnoxious oaf is free to say disgusting things about me and my loved ones, as long as I know I will be sure of being acquitted if I hospitalise him with a punctured lung from a rapier thrust. Or better still, leave a long livid scar on the impertinent scoundrel's puffy face.

At the very least one ought to be able to thrash the rogue with a horsewhip.

It's only fair, isn't it?

I'm not being sarcastic -- our time is the aberration, not our ancestors'.

In an earlier post about AutoAdmit, Jill from Feministe notes that pictures of her from her Flickr account and from somebody's (I don't think it's clear whose) Facebook account were used. I don't have any reason to guess she's the plaintiff, but it makes Zach's guess that that's where the copyright infringement claim came from seem likely.

She's not, apparantly: if you're really curious, they're using their names over on AutoAdmit.

My brief visit over there has changed my mind about this a little. I haven't seen the original posts, but from what I gathered, the defendants publically stated that one of the plaintiffs has herpes and encouraged the other people in the discussion to follow her around at the gym and try to get pictures of her in skimpy clothing to post. Really sleazy stuff, far beyond name-calling and "hurt feelings".

These are pictures of individuals, with their names, baselessly and publicly attacked in front of their peers and coworkers.

The same thing happens to everyone from George Bush and Hillary Clinton to Carson Daly and Lindsey Lohan. What's new here?

And before you say "they're public figures" -- the plaintiffs put photos of themselves online. You can't parade yourself before the public and then claim privacy.

The photos were taken and posted by Jane Doe II. She owns the copyright.

Assuming that her claim is true, and that a copyright notice accompanied the picture, and that she notified the website that she was the copyright owner and had her request for the removal of the pictures denied, she's probably entitled to at *least* fifty or sixty cents in damages.

Copyright law is pretty crazy these days, but you can't sue someone for a snujillion dollars over trivial use of a nearly worthless photograph.

Angela: If you're asking a First Amendment question, the issue is whether it's a "true threat." If it's the tort question, it's a matter of state law, and I think it probably relates to whether a threat is credible. Do you think every time a boy says, I'd like to rape X, a reasonable person would think he was threatening to do it? Have you ever said I'd like to kill somebody? Not everything in the form of a threat is a real threat. That's the key.

"The photos were taken and posted by Jane Doe II. She owns the copyright."

No, that's not what the complaint asserts. It says she owns the copyright, not that she took the pictures. There are some more facts here we need to know. And I am not purporting to say what the copyright law is when someone acquires the copyright after the alleged infringement.

I wasn't saying that it's different than Lohan (though it most certainly is), I was saying that it's different than Pisschrist. This isn't about liberal elitism, was my point, and this toothless complaint could just have easily come from a Liberty University student. But Instapundit couldn't pass up a shot at the "liberal elite" and for whatever reason, Ann had his back.

Again, I'm not saying that the suit can or should be successful.

I had never seen AutoAdmit until tonight. It's something else. It's bathroom graffiti writ worldwide. If you want your opinion of humanity knocked down a few pegs, I recommend it. Currently the most popular topics seem to be "Tut, Tut, Public Education Is For Whelps", "F*ck N*ggers", and "_____ has herpes, don't f*ck her."

Now clearly, the webmaster can't be sued every time some cretin encourages a bunch of jackasses to stalk someone. But it is a new issue. Pretending this is Pisschrist in reverse is reductive and sort of paranoid.

No, that's not what the complaint asserts. It says she owns the copyright, not that she took the pictures

I'd say you'd have got to be kidding, but I'm too much of a fan of your weaselling to concede that.

If you think she doesn't really own the copyright, which means she took the pictures, you're pretty stupid. This is not an arcane matter of law but a simple question of fact. While it is possible you would fuck up something so basic, I'd be astounded if a practicing lawyer would.

Most likely you've just once more boxed yourself into a corner and are relying on ludicrous hyperliteralism and bluster to pretend you haven't made a fool of yourself.

But by all means, carry on. You are easily the most entertaining ongoing trainwreck this side of Paris Hilton.

If I post "John Doe is a moron, he only passed Torts because he was screwing the professor. He's got herpes. Someone should take him around back and beat the living crap out of him. Here's a picture of him. Here's his address. Here's the license plate of his silver '96 Camry. I think we should cut off his genitals let him bleed to death. He's a thief. He's a liar. He's a crack addict. He'll do you in the bathroom for $5. You can find him going into his Con Law class at 2PM on Tuesday, Room 112. He's going to cheat on the bar exam, he's screwing the proctor."

That's is protected speech? Really? That's a rough compilation of things that have published there. What does it take to be a "real" threat?

I agree, the copyright claim is a stretch and is only there to get it into Federal court. Does that really offend you so much?

Angela: If the question is defamation, I haven't said anything about that. You raised the question of threats. For defamation, we'd need to know if there were lies. Not everything is protected. I certainly agree with that.

By the way, people write incredibly nasty things about me on the web frequently. I have never considered suing them. Do you think I should? Much of it is false and intended to destroy my reputation and cause me great anxiety.

As for raising a frivolous claim to leverage a lot of state claims into federal court, yes, that does bother me. But then, I'm a Federal Jurisdiction teacher and have been for more than 20 years, so it seems fairly important to me.

LOL. Then what do you think the AutoAdmit guys do??? They look at crap on the web and blab about it. Same thing. But they focus on particular women and keep going and going, seeming rather obsessed. Clearly, you do that to me, you creep.

Really? I'm the same as the "AutoAdmit" guys? Quote a single thing I've ever wrote about you where I have advocated rape, or even mentioned your person in any way, shape, or form. I can easily quote and cite you calling critics "pricks" and so on. Surely you have something countervailing to cite, or you will withdraw the charge.

I can and have proven that you will cheerfully accuse women you do not know of "sexism" for frivolous and unsupportable reasons, without any regard for their feelings or reputation.

Registration is necessary to get to court and statutory damages, but you need not register at the time of the infringing acts. (If you don't or don't within the 3 mo window you don't get statutory damages, that's all.)

I would be shocked if the lawyer didn't do his homework on the copyright side - I think that's the strongest claim, and a pretty good hook.

The AutoAdmit guys were mainly expressing their opinions -- that they found various women attractive (expressing it very crudely). They looked at things about particular women and talked about what they thought. But I admit, what you are doing is different in some ways -- it's creepier to obsess over me for -- what? -- years than for the AutoAdmit guys finding pictures of women sexy.

Oh, so I'm worse than what the Auto Admit guys said, as expressed in the claim?

They advocated rape.

I want you to apologize, sincerely, to a woman who was subjected to years of abominable sexist harassment: you claimed falsely, and absurdly, that a comment of hers that had nothing to do with you was "sexist." You caused pain.

You are way out there, you know. But it's still not too late for you to do the right thing.

Victor: The point is that all the state law claims need a basis for federal jurisdiction. They've got to be supplemental to the federal claim, following the requirements of §1367. I think there's a big problem under (a) and (c).

Angela: I don't think your hypo is close to what happened. From what I've read, it did not sound as though the guys were doing anything other than speaking very crudely about how attractive the women were. Do you think that should be against the law?

Prof. A, I think you're overanalyzing the jurisdictional issue, but whatever. Probably peripheral to the lawsuit, which pits free speech rights against an extreme where actual harm seems to have been caused and the facilitator did little. I'm sure it will settle out early, but it will be fun to see who gets involved (from the legal side) and the early skirmishes.

If it doesn't settle now, it will after some discovery, which won't be pretty for anyone involved.

I disagree with most of you. This isn't a case where they said mean things about these women. They outright defamed her character. They should have every right to defend themselves against the character assassination...especially if it affects their ability to get a job.

Now, if these women did things to bring this on, such as posting nude pics of themselves, I wouldn't feel that sorry for them. But if they did nothing to warrant this attention, they should be allowed to defend their character. (my understanding is this started out of a "she is hot" and escalated into some pretty offensive stuff). What other recourse do these women have to "get their reputation back"?

And by the way, I blame the behavior of these boys on feminist. They think they did women a favor with the whole "sexual revolution", but all they did was turn women into sexual objects and gave men an excuse to be irresponsible with their behavior.

Reading the complaint, it sounds like some fairly nasty trolls latched onto a few students.

The sexual imagery is vivid and nasty, but you could easily see similarly nasty imagery if you went to any Slashdot thread and read it at a threshold of -1. (Slashdot moderates comments, and demotes trolling to a level which is not seen by the default settings, but doesn't erase them.)

The odd part of the complaint is that the plaintiffs say they had no knowledge of the site before the original nasty thread. So theoretically, the thread was harassing the plaintiffs before they knew it existed. That seems at odds with the everyday meaning of harassment, although I know nothing of the law and the legal definition could be entirely different. I would think that an actual campaign of harassment would require intentionally contacting the plaintiffs -- by posting on a site they were known to frequent, sending emails, calling on the phone, etc. This is the dog that doesn't bark in the complaint, where no actions fitting this description are alleged. Perhaps starting new nasty threads after the initial complaints would fit the bill, since that could be seen as egging on the trolls, plus the plaintiffs would then be known to view the site.

Interesting comment from a Volokh commenter - Volokh has a good post outlining the issues (as does Prof. Goldman):

[One important thing to note about Autoadmit/Xoxo and the copyright claim is that the site does not post pictures on threads. The pictures presumably being referred to in the complaint were hosted on a completely different site initially started (IIRC) by "Paulie Walnuts."]

Victor: this might be my math/science background at work, but all of the other claims are logically independent of whether the use of the photographs violated a copyright or not. ie, the plaintiffs could win on every other claim and lose on the copyright issue, or lose on every other claim and win on the copyright issue. So if you made a decision tree of questions that had to be settled by the case (Do the actions fit the definition of harassment? Were the actions malicious? In such a graph, the copyright issue would be completely distinct from all the other claims. That's why I don't see the relation.

I see what you're saying - and while it makes sense, probably won't influence the court's thinking much on the issue of whether the claim was properly tagged along. It could speak to the issue of copyright preemption (whether the copyright claim preempts the state law claim).

Man, this lawsuit took a life of its own on the net. That's gotta be rough for a lawyer, knowing his/her pleading is going to be scrutinized heavily.

All said, this lawyer did a decent job IMO and was aware of the major landmines.

I did not see any allegation regarding pictures of Doe I, and that Doe II claims to hold registered copyrights in five of the photographs does not establish jurisdiction for Doe I. Moreover, Pauliewalnuts is the only defendant named as allegedly infringing the allegedly copyrighted pictures (by posting them for all of 10 days on-line), which would not establish jurisdiction for the other defendants.

Upon closer inspection, while paragraph 46 alleges that Doe II owns the copyrights, she is not the one claiming infringement -- the only plaintiff asserting the copyright claim (paragraphs 62-64) is Doe I. So neither one has established jurisdiction.

1. If these women don't have some method of suing for defamation, then the word has no real meaning anymore. I don't care what the legal requirments have become, in any other age, putting up these words on town light-posts would have been seen as defamatory, and the perpetrators beaten, not sued.

2. Yet here we have feminism wanting it both ways. They want to say defamatory things against religions, people, and ideologies, here on Ann's site, everywhere, but run for cover when the expected scuzzballs use the same rules for really vile behavior. They want the right to say "f*ck you", but want to cry when you do that back to them. (Not these specific women; I mean how feminism has disabled speech by a double standard).

3. But good lord, Thers (Thersite the Banned)? Again? Doesn't he ever go away? Dave? AJD? Funny how 3 guys just like the AutoAdmit creeps circle here to support women who are suing creeps. What, are they looking to corner the creep market?

4. I'm with reader_iam here. This kind of stuff, if not beyond the pale, means there is no pale at all. No rules. And the new rules against "online bullying" will be discarded. And people can print anything and everything about you, because all people are public figures because their name is on a web page somewhere.

Bear in mind what I know about copyright law would fit on the sharp end of a pin, BUT, could a case be made that the owner of the image she created as the person in the photogragh, used against her will?

Not the photgraph image, but the image of the individual? None of us are as God made us, unless we have never cut our hair or bothered to clothe ourselves, so could an argument be made that the modifications the plaintiff made to her appearance could be subject to copyright?

A new hairstyle, different makeup and clothes would create a whole new appearance and image, subject to a different copyright?

If the plaintiff(s) did not own the copyrights at the same time as the other incidents alleged in the complaint, how can the copyright infringement be part of the same constitutional case as all the state law tort claims under §1367(a)? That is, how can the federal court have jurisdiction over anything but the copyright claims?

I surely did not anticipate seeing the n-word in this post! In any event, I agree with Ann's analysis, but think there is strategic value to filing the complaint, anyway. Perhaps the judge will decide sua sponte there is no subject matter jurisdiction and toss the state law claims or perhaps the judge will wait for defendants to appear and make that argument and perhaps retain jurisdiction for diversity purposes at that stage based on the citizenship of the various defendants. What is permits is time for defendants -- as of yet unknown defendants -- to show up, or to have a default judgment entered against them. Or am I wrong?

Mortimer: The complaint doesn't allege that jurisdiction is based on diversity, and I can't tell where the plaintiffs are domiciled, let alone all the pseudonymous defendants. I don't think the plaintiffs are domiciled in Connecticut anyway. They came for law school, and they never had the intent to remain indefinitely.

And Zach made a great point here: "this might be my math/science background at work, but all of the other claims are logically independent of whether the use of the photographs violated a copyright or not. ie, the plaintiffs could win on every other claim and lose on the copyright issue, or lose on every other claim and win on the copyright issue. So if you made a decision tree of questions that had to be settled by the case (Do the actions fit the definition of harassment? Were the actions malicious? In such a graph, the copyright issue would be completely distinct from all the other claims. That's why I don't see the relation."

Think about it. What if the pictures had been posted under a license permitting theme to be used? The rest of the claims would be in the same position. There isn't much if any overlap between the copyright question and everything else. It's a tiny tail to wag a huge dog, and I'm not even convinced this tail is attached to that dog.

Why are my tax dollars going to pay for a federal court system to settle a playground spat between a bunch of over indulged spoiled children? All of the people invovled in this are loathsome. In a better age these children would have been full grown adults with too many real concerns beyond making thrid grade cracks about cute girls or wining about said cracks to care much less sue. A pox on both houses. Any law firm dumb enough to hire anyone associated with this affair deserves to go bankrupt.

i'm more than a little late to the discussion, but seeing as how some of the posters are exorcised about the threatening and harassing nature of the comments about Does 1 and 2 on AutoAdmit, my question is why isn't this a criminal matter then?

and i'd like to ask that not only as a procedural matter, not only as a matter of legal tactics, but as a matter of legal philosophy. why would anyone use or support the use of the civil courts to contain, abate, or prevent harassment and threats? i'm not speaking to defamation, which is clearly and aptly conscribed in civil jurisdiction. but criminal behavior should be confronted by the constabulary and the criminal courts in a criminal context, no? isn't the point of criminalising some things to punish the perpetrators by depriving them of ther freedom, not merely depriving them of some financial security or status?

doesn't encoding this paradigm in the law eventually lead to someone truly being above the law in the sense that they might be able to weather a civil punishment were they wealthy enough? for example, what if oj simpson was a billionaire? after being found not guilty, how large a judgment would need to be imposed to punish him in fact (this question precludes the discussion of how you value a human life and assess damages based on the taking of a life)? brought back to the case at hand, what if these posters were independently wealthy? no criminal charges forthcoming. they could go on and on threatening and harassing women, paying what amounts to fine each time they get sued just be done with the matter and move on to the next target.

and as others have noted about themselves, i am not a lawyer. so if this question gets covered in the first year of law school, i apologise for being ignorant on the subject.

Many of the posters here are using the words "we, "they," and "the defendants" as if the defendants are legally or morally interchangeable. I believe this is grossly unfair. It has lead to poor analysis and has resulted in people shouting past one another. I think it's only reasonable that bloggers read the complaint carefully: The defendants are accused of very different things. For example, few of the defendants wrote anything that could be construed as a threat, and most did not make factual assertions about the plaintiffs. Many of the defendants are accused merely of writing hyperbolic, sophomoric posts about their desire to have (consensual) sex with a woman. Some of the milder posts even have a satirical tenor, appearing to poke fun at the multitudinous juvenile posts. (For instance, one defendant wrote verbosely about how he'd like to have sex with a plaintiff after a lovely marriage.)

I feel that the plaintiffs weakened their legal claims and lost the moral high ground by prejudicially lumping all the defendants together. But for the purposes of this blog, where there's supposedly a policy debate going on, the least bloggers can do is distinguish which defendants' speech should or should not be subject to First Amendment protection. So who here will argue the narrow proposition--the proposition implicitly asserted in the complaint--that brief posts regarding one's desire to have sex with a non-public figure are not protected by the First Amendment?

It is easy for you, and Glen Reynolds, it seems to me, to ridicule a law student for suing, but you folks are tenured professors who will never have to go out into the real world of law firms and try to get a job or a partnership, and these poor folk will forevermore be damaged goods as far as the Byzantine creeps that run law firms are concerned, so it seems to me there is something to this lawsuit worthy of serious discussion, not just your smug snarky comments.

Hmm. I haven't followed this story so I probably shouldn't post. But I feel like posting something, so whatever.

I find it hard to believe that 16 law firms all rejected a condidate because of this Autoadmit stuff. That said, I also find it a bit odd that a tenured law professor with a powerful and established presence online is comparing some nasty things said about her with what happened here.

My understanding is that the deranged online harassers attempted to make their crap be the first things that appears when someone Googles the victims' names. Professor Althouse, imagine yourself someone in law school applying for a job. If the first thing someone sees about you when they Google you is all this weird stuff, that is a big deal.

What I'm saying is, I don't disagree with Althouse for the most part, but her trivialisation and lack of empathy strikes me as odd.